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I am an italian citizen 🇮🇹. My Brazilian 🇧🇷 girlfriend came to Italy last year as a tourist, and overstayed the 90-day period by about 6 months. We are getting married next week and we are planning to travel to Brazil soon after. What should happen to her when leaving the EU? Considering that:

  • we'll have a marriage certificate
  • I'd be traveling with her

From our research, the two consequences for overstaying are fines and travel bans. What I was not able to determine is whether and to which extent our marriage certificate can help. It seems to be a gray area, so we are trying to have a rough idea of the likeliness of the outcomes (fines vs. travel ban vs. all good) and also their strength (how much money is a fine? How much time is a travel ban?), even if anecdotal.

Extra details

  • Flight goes from Italy 🇮🇹 to Brazil 🇧🇷 with a connection in Portugal 🇵🇹. From my understanding, that's where she will be confronted about her overstay.
  • Proof of marriage will of course be in italian.

Clarification

  • I am resident in Italy.
  • We are planning to eventually live here and we have considered applying for a residence permit ("Permesso di soggiorno per motivi familiari"), but the process is known to take up to several months, while we need to travel as soon as possible.
  • I was not aware of the residence card ("Carta di soggiorno per familiare extracomunitario") which seems to be an alternative to the former. I'm now trying to understand how the process works and whether we meet the requirements.
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  • The benefit of the card is that a certificate should be immediately issued which you can use for your trip. Otherweise both are the same.
    – Mark Johnson
    Jan 24, 2022 at 12:29
  • So my girlfriend's right of residence is automatically acquired at the moment of marriage. This right can be documented by the certificate of application to a residence card (issued immediately upon request). Applying does not require special conditions other than being married, and the card itself does not imply that she resides here - it just documents her right to do so. (1/2)
    – natario
    Jan 24, 2022 at 16:59
  • Informally, it seems to me that there's not a big difference between the certificate of application to the card, and the marriage certificate alone. Would it be right to say that in a perfect world, with immigration officials of infinite knowledge and patience, the marriage certificate itself should be enough for both leaving/returning? Not that I intend to travel this way, we will likely apply. Just out of curiosity.
    – natario
    Jan 24, 2022 at 17:01
  • @natario as long as you travel together - yes, it should be enough.
    – littleadv
    Jan 24, 2022 at 17:05
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    @littleadv That you don't understand that this question is about the fulfillment of the Schengen Border Code Article 8(3)(h) Border checks on persons togeather with Directive 2004/38/EC Article 26 and not about people getting married is obvious.
    – Mark Johnson
    Jan 25, 2022 at 8:16

4 Answers 4

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The simplest solution is, after the marriage has taken place, is to go to the Italian Immigration office (or local Anagrafe) and apply for an Article 10 residence card (Family member of a Union citizen). Italy, as apposed to some other EU countries, will issue a Article 10 card to the spouse of an Italian citizen.

DIRECTIVE 2004/38/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 29 April 2004

on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC

Article 1
Subject
This Directive lays down:
(a) the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union citizens and their family members;
(b) the right of permanent residence in the territory of the Member States for Union citizens and their family members;
(c) the limits placed on the rights set out in (a) and (b) on grounds of public policy, public security or public health.

Article 2
Definitions
For the purposes of this Directive:

  1. ‘Union citizen’ means any person having the nationality of a Member State;
  2. ‘family member’ means:
    (a) the spouse;
    (b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;
    (c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);
    (d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);

...

Contrary to opinions expressed elsewere, a Brazilian citizen, who is a family member of an Union citizen, will have certain rights that other Brazilian citizens, who are not a family member of an Union citizen, will not have.

Article 9
Administrative formalities for family members who are not nationals of a Member State

  1. Member States shall issue a residence card to family members of a Union citizen who are not nationals of a Member State, where the planned period of residence is for more than three months.

...
Article 10
Issue of residence cards

  1. The right of residence of family members of a Union citizen who are not nationals of a Member State shall be evidenced by the issuing of a document called ‘Residence card of a family member of a Union citizen’ no later than six months from the date on which they submit the application. A certificate of application for the residence card shall be issued immediately.

Once this card (or certificate) has been issued, the documented right of residence in Italy exists and therefore there will be no problems when leaving or entering the Schengen Area.

Any possible fine, due to a previous overstay, would be delt with when the application for the Article 10 residence card is being made. Since the marriage at this point has taken place (and thus the right of residence allready exists), the officials may come to the conclusion that it is not worth the effort (but with bureaucracies you never know).

With the Article 10 residence card the spouse can also work, so this card will be needed anyway sometime in the future so you might as well get it done now.

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  • But doesn't that require any evidence of actually living in Italy? Can she have the residence card even if she actually lives in Brazil? (Not sure what the actual situation is, the OP doesn't tell anything about their intentions of residency either way)
    – littleadv
    Jan 24, 2022 at 7:39
  • @littleadv The OP is getting married in Italy, thus is a resident. The spouse will then become a resident.
    – Mark Johnson
    Jan 24, 2022 at 7:44
  • Or maybe they're planning to move to Brazil? We don't know, the OP seems to be concerned about going through Portugal on the way to Brazil, not on the way back. Would your answer still be correct in such a case? Besides, spouses living in different countries is not unheard of...
    – littleadv
    Jan 24, 2022 at 7:53
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    @littleadv We do know they are getting married in Italy and therefore the right of residence exists immediately. Getting that documented is the simplest solution. Don't make complicated matters more complicated than they need be.
    – Mark Johnson
    Jan 24, 2022 at 8:08
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    I may not have explained myself. The right exist, but the card is only given to those living in Italy. The OP has not said anything to suggest that they intend to do that, in fact the OP suggested they're flying to Brazil and didn't mention any planned travel back to Italy. See this site: smartdualcitizenship.com/blog/…: Remember: Residence cards are for families residing in Italy. In order to obtain it, both you and your Italian citizen family member need to move to and reside in Italy.. You are making an assumption here
    – littleadv
    Jan 24, 2022 at 8:18
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As the spouse of an Italian citizen, your wife will benefit from freedom of movement rights when traveling with you (or to join you), so no ban will be possible. It's very unlikely that an officer would try to impose a fine relating to an overstay before the marriage (if such a fine would even be lawful),

I don't have much experience with Portuguese border officials, however, so I can't say much about the probability of the (attempted) fine. I suspect it's close to zero, however.

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    That's actually incorrect. Being a spouse of an Italian citizen doesn't give the wife "freedom of movement rights". It's the EU citizen's right to be able to travel freely with their spouse, not the spouse's. So she will probably be able to travel within Schengen with the citizen, or to Italy, if the husband lives there, but she on her own won't have any inherent freedom of movement and her visa will likely be revoked.
    – littleadv
    Jan 24, 2022 at 1:49
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    @littleadv Italy has a law that guarantees the family members of its citizens rights at least as favorable as those granted to the citizens of other EU countries. Regardless the officials here will be Portuguese, not Italian, so not in a position to enforce Italian law even if it would impose restrictions on her stay in Italy, which it won't after the marriage. Also, she doesn't have a visa because she's Brazilian, so there's nothing to revoke.
    – phoog
    Jan 24, 2022 at 7:34
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    @littleadv For the Portugese the only thing that matters is that the spouse of an EU citizen are travelling togeather. As long as the marriage can be proved nothing else matters. The freedom of movement right overrides the entry/exit rules for 3rd country nationals.
    – Mark Johnson
    Jan 24, 2022 at 8:17
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    @littleadv the Italian law makes no difference to the Portuguese because they're not Italian; they only care about directive 2004/38/EC. They see an Italian citizen leaving with his Brazilian wife and they stamp her out of the Schengen area. They're not going to ask how much time she spent where nor whether she was authorized to stay for more than 90 days, and they're probably not going to ask for documentary evidence of the marriage, so they won't know when it occurred. The last statement is based on dozens of experiences of EU citizens crossing the Schengen border with non-EU family.
    – phoog
    Jan 24, 2022 at 8:23
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    @natario "I'm now trying to understand how the process works and whether we meet the requirements": after you're married, you will unambiguously meet the requirements for the residence card. Before you're married, you may or may not meet them, depending on how Italy treats de facto partners and whether you meet the criteria. An important point is that the card is called a card rather than a permit because the right of residence exists independently of the card, even before the card is issued.
    – phoog
    Jan 24, 2022 at 13:51
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You can absolutely leave safely. The problems may occur when she returns. As mentioned in the other answer - if you both intend to live in Italy, the simplest solution would be to apply for the Italian residence permit before leaving. While there may be a potential fine assessed during that application (maybe? probably? unlikely? Who knows...), the residence permit is guaranteed if you intend to reside in Italy and will serve as evidence to her right to arrive to the Schengen area if she travels alone.

Flight goes from Italy 🇮🇹 to Brazil 🇧🇷 with a connection in Portugal 🇵🇹. From my understanding, that's where she will be confronted about her overstay.

Unlikely. Both Italy and Portugal are within Schengen area and there are no immigration checks between them. She will also be traveling with her EU-citizen husband - as long as you're together she's entitled to the right of passage by virtue of being your spouse (see details here).

Proof of marriage will of course be in italian.

You should probably keep around a notarized translation and have it apostiled, but technically (according to the same page), it's not strictly necessary.

From our research, the two consequences for overstaying are fines and travel bans.

Reading the same site and this page, the consequences may be:

  • Nothing.
  • Travel ban. In this case, she (according to this) will always be entitled to enter the EU country where you (the citizen) live, or when you both are traveling together, as long as she can prove you're married. However, she may end up banned when traveling without you to a country where you do not live or are not currently present, at least in theory. That may change if she becomes Italian resident.
  • Fine - her being your wife doesn't seem to preclude her from being penalized for the overstay. At least, I couldn't find any sources to suggest that being married to you would exempt her from penalties for prior immigration violations.

How likely any of that is to happen is hard to tell. I'd suggest chatting with a EU-based immigration attorney for just in case.

Note about the extended comments and downvotes here: there are apparently very strong feelings amongst the EU folks about their freedom of movement in Europe.

But the commenters keep forgetting that the person we're discussing isn't a EU citizen. So while I've been attacked by numerous commenters claiming that I misunderstand how freedom of movement for EU citizens work and this answer was downvoted due to their animosity - I just want to remind everyone again that Brazil is not part of the EU.

I've asked the moderators to clean up all the irrelevant comments and will remove this note once that is done.

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  • 2
    @littleadv I know this is how it works in the US and other places and I repeatedly see people suggesting a similar approach for Schengen area. That's not how it works there however. You cannot apply for or be granted a uniform Schengen visa if citizens of your country do not require one to begin with. There are no provisions for this anywhere. You also cannot apply for a visa as a way to lift a ban or an alert in the SIS. In fact, it works the other way around: If you do need a visa, you need to dispute the ban and get it lifted first to have any chance of not getting an automatic refusal.
    – Relaxed
    Jan 24, 2022 at 17:18
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    @littleadv I am trying to stick to the specific legal terminology to avoid this kind of evading tactics (you already tried to pull that with the word “visa”). I am not contradicting myself, I am talking about “persons enjoying the right of free movement under Union law“, as defined in article 2(5) of the Schengen Borders Code. Do you understand the meaning of that phrase? Do you realise such a person can, in fact, be required a Schengen short stay visa to enter the Schengen area?
    – Relaxed
    Jan 24, 2022 at 17:44
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    Here again it's the other way around: Entry is never absolutely guaranteed (there is always the possibility to invoke "public policy, public security or public health") but EU free movement does apply (any naive understanding of the phrase “free movement” notwithstanding). That's why such a visa must be free of charge and issued expeditiously (which is definitely not the case for a regular Schengen visa).
    – Relaxed
    Jan 24, 2022 at 17:48
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    @littleadv What claim would that be? If anything, you're the one who overestimates the extent of EU freedom of movement (as you seem to think it entails a complete exemption from any visa requirement, which is not the case). I certainly never claimed being the spouse of an EU citizen gives you any absolute right to enter (I already detailed the limits and caveats in countless answers on this site and on travel.SE) but I can see why it's easier to beat that straw man given the level of confusion in your comments.
    – Relaxed
    Jan 24, 2022 at 18:05
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    There is another small mistake in your last comment, residing in the EU is irrelevant as such. For EU law to apply, you must reside with your EU citizen spouse and they must be making use of their own right to freedom of movement (even that is not absolute). That distinction is especially important for EU citizens residing in their country of citizenship for many countries are more restrictive than Italy. It's ironic you would forget that given how much hay you make of any occasion where another user forgets to mention the exact conditions in which EU freedom of movement applies.
    – Relaxed
    Jan 24, 2022 at 18:16
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  • As it has been pointed out in other answers, there will be no problem to leave the Schengen area, but there may be problems returning.
  • The 90 day period applies to the Schengen area, however some countries have bilateral agreements between them, allowing the visitors to stay longer. Specifically, you have to check whether such agreements exist between Italy and Brazil.
  • If your girlfriend is not legally present in Italy, it is not clear how you could get married at all. The marriage recognized for visa purposes is, of course, only the marriage recognized by the state.
  • Normally, after the marriage one has to solicit a spouse visa or a corresponding change of the visa status. Many states require that one applies for such a visa in one's home country - it is therefore a good idea to check with the Italian embassy in Brazil (via email or by phone).
  • Finally, being in an irregular situation is never a good idea - at least not unless your life and death depend on it and/or when you simply have nothing to lose by breaking the immigration law(as in the case of many illegal immigrants).
  • Finally, there is a chance that your situation will earn some clemency from the immigration officials, but the sooner you get in the clear, the better. Please don't aggravate it beyond repair.
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    "it is not clear how you could get married at all": does Italy require proof of lawful presence of couples seeking marriage licenses? Many countries do not. "Many states require that one applies for such a visa in one's home country": such a requirement is inconsistent with directive 2004/38/EC so it cannot be imposed in this case.
    – phoog
    Jan 25, 2022 at 10:29
  • @phoog I don't know about specifics about marriage in Italy, but in most EU states it requires a great deal of paperwork - identity cards, birth certificates, proof of residence, proof of being single, etc. Many of them have to be obtained from one's country's embassy in the EU. So slipping past with an invalid residence permit may be hard. Moreover, marriage will be a documented proof that one has overstayed one's visa. There are also witnesses who will vouch for its legality by presenting their documents (identity cards or passports).
    – Roger Vadim
    Jan 25, 2022 at 10:45
  • @phoog Having to apply for spouse visa in one's home country is a fact of life. Whether it contradicts to 2004/38/EC is not clear to me, since the directive applies to the citizens of the European comunity and some selected countries - not to Brazil. As I said, in my answer, checking for bilateral treatieas and getting teh first-hand information from the relevant government offices/embassies is a must.
    – Roger Vadim
    Jan 25, 2022 at 10:47
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    Typically those countries that require proof of residence only require one partner to be resident, for reasons that should be obvious, and that requirement is met by the Italian spouse in this case. The Brazilian partner will have a passport with an outdated entry stamp, but if they use the passport only as proof of identity, that won't be a problem. Nothing on Rome's page suggests that they check immigration status.
    – phoog
    Jan 25, 2022 at 10:52
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    Directive 2004/38/EC applies to third-country nationals who are family members of EU citizens. The bilateral thing is unlikely to help as those typically allow a stay of three months, and they only allow an extension of a stay in Schengen if the 90 Schengen days were used in other Schengen countries.
    – phoog
    Jan 25, 2022 at 10:56

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